STAKES HIGH AS COURT EXAMINES HEALTH LAW

Ruling could be biggest statement on regulatory power since the 1930s

The Supreme Court will embark Monday on a three-day examination of the Affordable Care Act — “Obamacare” to Republicans — with supporters arguing it is a constitutional way to insure the uninsured while opponents counter that if Congress can require Americans to buy health insurance, it can make them eat broccoli.

The stakes couldn’t be higher as legal and health policy experts parse each word the justices utter during six hours of oral arguments, sifting for clues on how they will rule in what’s shaping up as a landmark decision.

The court’s opinion, expected by the end of June, could well be its most significant statement on the limits of congressional regulatory power since the 1930s, when the justices struck down and then upheld President Franklin D. Roosevelt’s New Deal.

“If the Supreme Court strikes down the entire Affordable Care Act, this will be the first major federal regulatory law invalidated since 1936,” said Erwin Chemerinsky, dean of the UC Irvine School of Law. “If the court upholds the law, there will be an important social and economic effect.”

Health care in the United States is a multi-trillion-dollar industry, but 50 million people have no insurance and cannot pay all their medical bills.

The cost of uncompensated care for the uninsured amounts to $43 billion annually. Hospitals make up the difference by charging higher rates to insurance companies, which pass them on to policyholders. The bill for uncompensated care adds more than $1,000 to individual policyholders’ premiums.

The Supreme Court is actually reviewing three cases that present four distinct issues, some of which might alter or sidetrack a ruling on whether the health-care law is constitutional.

Day One of the arguments focuses on an 1867 tax law that could affect the health law’s penalty for not buying insurance. Day Three concerns the law’s Medicaid expansion, which 24 states complain is an act of federal coercion, and whether a negative decision on one part of the law dooms it all.

Justices also will look at how the law squares with the Constitution’s grant of taxing power to Congress and its permitting Congress to approve laws “necessary and proper” for carrying out its constitutional authority.

Supreme Court handicappers predict the justices will find a way to rule on the main constitutional question they consider on Day Two: Does the law’s health insurance mandate fall outside the Constitution’s commerce clause, which gives Congress regulatory power only when matters of interstate commerce are involved?

Opponents of the law said it does.

“This is an unprecedented claim of governmental power,” said Randy Barnett, a law professor at Georgetown University.

Opponents argue that while the Constitution grants Congress the power to pass laws that regulate interstate economic activity, it doesn’t apply to a case of “inactivity.”

“Our position is you cannot tell someone to go out and engage in activity, in commerce,” said Bill McCollum, the former Florida attorney general who brought the case now before the court.

Roger Vinson, a Florida federal judge, wrote last year that if Congress can force individuals to buy health insurance, it could “require that people buy and consume broccoli at regular intervals” because it’s good for you and it helps interstate commerce.

The law’s advocates counter that opponents are obfuscating the real issues weighing down the health care system.

“There is no liberty interest in forcing other people to pay your medical bills,” said Joe Onek, a veteran lawyer in Washington, D.C.

Elections would guarantee that Congress doesn’t overstep its bounds, Onek and other supporters said. And not purchasing health insurance is in itself an “activity” because failure to do so shifts health-care costs onto insurance policyholders nationwide, they said.

“The ‘inactivity’ argument has no legitimate foundation,” said Robert Field, a law professor and health-policy expert at Drexel University in Philadelphia. “The only issue should be whether the mandate is necessary to regulate interstate commerce.”

Field and others argue the mandate, in fact, is an appropriate mechanism to ensure the insurance risk pool is large enough to handle the law’s other main provisions: Barring insurance companies from refusing coverage to those with pre-existing medical conditions, or charging them higher premiums.

Opponents are betting the court’s five-justice conservative majority will hold together and scuttle “Obamacare.” Supporters said they expect to win over at least one conservative vote. Up for grabs, they said, are Chief Justice John Roberts, Justice Anthony Kennedy and maybe even the court’s conservative stalwart, Justice Antonin Scalia.